KO SHUN v. ROYAL MORTGAGE LTD AND ANOTHER

DCCJ 5242/2018

[2019] HKDC 85

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5242 OF 2018

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DECISION

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INTRODUCTION

1.  By an inter partes summons filed on 19 November 2018 (“the summons”), the plaintiff (“Madam Ko”) seeks an interlocutory injunction requiring the 1^st defendant (“the mortgagee”) and the 2^nd defendant (“Mr Yeung”) not to obstruct or interfere with a right of way claimed by Madam Ko (“the right of way”) over the lane coloured yellow on the plan annexed to the summons (“the Subject Way”), to remove the bricks (“the Bricks”) and the concrete block (“the Concrete Block”) on the Subject Way as identified in the photograph annexed to summons, and to recover or pave the damaged portion of the Subject Way (“the Damaged Road”) identified in the same photo.  Madam Ko claims that she has the right to use the Subject Way as both a pedestrian and a vehicular access[1].

2.  I would first set out the factual background.

BACKGROUND

3.  Madam Ko was born in 1931.  She is a villager who has been living in San Wai Tsuen (“the Village”) since 1950.  Madam Ko has 2 sons, namely, Mr Chau Chun Shun (“the elder son”) and Mr Chau Chun Kun (“the younger son”).

4.  These proceedings concern various lots in Demarcation District No 104 in Yuen Long, New Territories.  The lot numbers referred to in the paragraphs below are those in this demarcation district.

5.  According to Madam Ko, she lived in Lot 2051 for several years since 1950 when she first moved into the Village.  She then moved to No 89 San Wai Tsuen, now known as House No 45F San Wai Tsuen (“House 45F”), which is situated on a piece of Government Land beside Lot No 4160.  After that, she moved to House No 43C San Wai Tsuen (“House 43C”) which is situated at Lot 2120 in or about 2006, and has been living in House 43C until the present date.  Madam Ko is living in House 43C together with the younger son.

6.  Since about 23 March 1983, House 43C has been registered in the name of the elder son.  Madam Ko claims that she is living in House 43C as a licensee, “exercising effective control and exclusive possession of House 43C since about 2006, treating the house as her own house.”[2]

7.  The Subject Way as pleaded in the statement of claim is a part of a road connecting Wang Ping Shan East Road to House 43C.  The Subject Way runs along and across Lot 2121 RP and Lot 2122.  Madam Ko claims that she enjoys the right of way over these 2 lots and is entitled to use the Subject Way as both a pedestrian access and a vehicular access without any obstruction.

8.  Lot 2121 RP is owned by Casdon Management Limited (“Casdon”), a limited company incorporated in the BVI.  Casdon has been the registered owner of Lot 2121 RP since 29 October 2010.  On or around 16 November 2010, Lot 2121 RP was mortgaged by Casdon to the mortgagee.  On or about 3 October 2014, the mortgagee entered into possession of Lot 2121 RP.  On 21 July 2017, Casdon was struck off from the Companies Register pursuant to sections 797 and 798 of the Companies Ordinance.

9.  Lot 2122 is owned by Hero Limited (in liquidation) (“Hero”).  Hero became the registered owner of Lot 2122 on 9 May 2008.  On or around 16 November 2010, Lot 2122 was mortgaged by Hero to the mortgagee.  On 8 March 2017, the Court of First Instance made a winding-up order against Hero.

10.  The mortgagee is now the mortgagee-in-possession of Lot 2121 RP and Lot 2122 and is managing these 2 lots.  Since 1 November 2015, the mortgagee has delegated the management of these 2 lots to a company known as Famous Property Development Limited (“FP”)

11.  According to Madam Ko, Mr Yeung is a person participating in obstructing Madam Ko to use the Subject Way.  Mr Yeung claims that he is the sole shareholder and a director of FP.

12.  Madam Ko claims that in around January 2017, the mortgagee and Mr Yeung caused the concrete pavements in part of the Subject Way to be unrooted and thereby damaged part of the Subject Way[3]. The mortgagee and Mr Yeung further caused some bricks to be dumped on the Subject Way and allowed a concrete block to remain on the Subject Way beside the bricks.  As a result, vehicular access on the Subject Way became impossible.

13.  Madam Ko further claims that in late January 2018, the mortgagee and Mr Yeung caused a fence (“the Fence”) to be erected around the Damaged Road, the Bricks and the Concrete Block.  The erection of the Fence further narrowed the Subject Way.  In February 2018, the mortgagee and Mr Yeung built a yellow gate (“the Gate”) on Lot 2121 RP and started to operate a parking lot (“the Parking Lot”) on Lot 2121 RP.  All these reinforce the impossibility of vehicular access on the Subject Way.

14.  It is not disputed that notwithstanding the aforesaid, the Subject Way can still be used as a pedestrian access.  The right of way claimed by Madam Ko in these proceedings is the right to use the Subject Way as a vehicular access.

15.  According to Madam Ko, the obstruction caused by the mortgagee and Mr Yeung started in around January 2017. However, Madam Ko only issued the writ of summons herein and the summons on 19 November 2018.  In her first affirmation, Madam Ko tried to explain why she did not take any legal action over a long period of time by saying the following:-

(1)   Madam Ko suffered a minor stroke on or about 5 March 2017.

(2)    Madam Ko only managed to obtain a legal aid certificate on 20 December 2017.

(3)   Her solicitors intended to retain Mr Valentine Yim of counsel to handle the case.  However, Mr Yim was on leave from mid-January 2018 to mid-March 2018.

(4)   On 12 June 2018, her solicitors sent pre-action letters to the mortgagee, Casdon, and the liquidators of Hero.  On 13 June 2018, the liquidators replied and said that Lot 2122 had been mortgaged to the mortgagee and asked Madam Ko’s solicitors to contact the mortgagee.  There was no reply from the mortgagee and Casdon.

(5)   Madam Ko was advised by her legal advisers that some legal applications would have to be made, including an application for leave to serve the court documents on Casdon (a BVI company being deregistered from the Companies Registry in Hong Kong) out of the jurisdiction, and an application for leave to commence proceedings against Hero (which was a company in liquidation).  An application was made to the Legal Aid Department to extend Madam Ko’s legal aid certificate to cover these applications.  After several rounds of correspondence between Madam Ko’s legal representatives and the Legal Aid Department in September and October 2018, upon further legal advice, Madam Ko decided to institute the present proceedings without suing Casdon and Hero.

(6)   On 9 November 2018, her solicitors wrote to a law firm acting for the mortgagee in other proceedings, asking whether that law firm would have instructions to accept service in the then intended proceedings[4] on behalf of the mortgagee.  There was no reply.

(7)   On 14 November 2018, her solicitors sent a pre-action letter to Mr Yeung.  There was no reply.

16.  I would consider Madam Ko’s application against the aforesaid background.

THE PRINCIPLES

17.  Madam Ko is seeking an interlocutory injunction to compel the mortgagee and Mr Yeung to take immediate action to remove all the obstruction on the Subject Way and to remedy the damaged part of the same.  In my view, the injunction sought by Madam Ko is an interlocutory mandatory injunction.

18.  The general principles concerning interlocutory injunctions are well known.  Those principles have been set out by Ribeiro J (as he then was) in Wah Nam Holdings Co Ltd v Excel Noble Development Ltd^[5], which are as follows:-

(1)   whether there is a serious question to be tried;

(2)   if so, whether, if the plaintiff were to succeed in obtaining a permanent injunction at trial, it could adequately be compensated by an award of damages in respect of any loss which it might suffer by reason of the defendant continuing to act unrestrained pending the trial;

(3)   if not, whether the defendant would be adequately protected by the plaintiff’s cross-undertaking in damages should it be later found that the plaintiff should not have been granted an interlocutory injunction; and

(4)   if there is doubt as to the adequacy of the respective remedies of damages, where the balance of convenience lies.

19.  In respect of an interlocutory mandatory injunction, the party seeking the injunction has to demonstrate a high degree of assurance that it will succeed at trial^[6]. However, “this is only generally the court's approach.  Where it is shown, as an exception to this general approach, that the case is one in which the withholding of an interlocutory mandatory injunction would in fact carry a greater risk of injustice than granting it even though the court does not feel the “high degree of assurance” as aforesaid, it would be right to grant an interlocutory mandatory injunction.”^[7]

ANY SERIOUS QUESTION TO BE TRIED?

20.  Mr Yim submits that the causes of action relied upon by Madam Ko are as follows:-

(1)   Against the mortgagee:

(a)   Claim of public right of way by way of dedication;

(b)   Alternatively, claim of private right of way by way of lost modern grant/prescription;

(2)   Against the mortgagee and Mr Yeung:

(a)   Public nuisance;

(b)   Alternatively, private nuisance. 

21.  Having careful considered the pleadings, the evidence and the submissions made by the parties, with respect to Mr Yim, I am of the view that there is no serious question to be tried in respect of these causes of action.

Casdon and Hero

22.  The starting point of Madam Ko’s case is that she enjoys the right of way and is entitled to use the Subject Way as a vehicular access.  If Madam Ko cannot successfully claim the right of way, her case must fail.

23.  A right of way is a proprietary interest enjoyed by the dominant tenement, and is a burden on the servient tenement.  The servient tenements affected by the right of way are Lot 2121 RP and Lot 2122, owned by Casdon and Hero respectively.  In my view, without suing Casdon and Hero in these proceedings, it would not be possible for the court to make any order declaring that Madam Ko is entitled to have the right of way.

24.  There is no doubt that Casdon and Hero are still in existence.  The fact that Casdon was struck off from the Companies Register pursuant to sections 797 and 798 of the Companies Ordinance in October 2017 simply means that Casdon had ceased to have a place of business in Hong Kong by that time.  But Casdon still exists as a non-Hong Kong company.  Hero is now in liquidation and is managed by the liquidators.  But Hero still exists as a legal entity.

25.  Although Lot 2121 RP and Lot 2122 have been mortgaged to the mortgagee and the mortgagee is now in possession of the same, Casdon and Hero remains to be the owners of these 2 lots.  Lot 2121 RP remains to be the property of Casdon, and Lot 2122 remains to be the property of Hero.  Casdon and Hero have the right to redeem the land by repaying the indebtedness owed by them to the mortgagee.  Mr Ronald Pang, counsel for the mortgagee, rightly points out that Casdon’s and Hero’s rights of redemption as mortgagors remain exercisable despite the fact that the mortgagee has entered into possession of the land.[8]  Further, if these 2 lots are sold by the mortgagee, after deducting all the sums owed to the mortgagee from the sale proceeds, the balance left must be given to Casdon and Hero.  No doubt Casdon and Hero have interests in these 2 lots.

26.  The right of way claimed by Madam Ko would cast a burden on Lot 2121 RP and Lot 2122, and would adversely affect the interest of the owners of these 2 lots, ie Casdon and Hero.  No court would give a final judgment adversely affecting a party’s interest without giving that party a right to be heard.  In these circumstances, it would not be possible for Madam Ko to get a judgment at the trial of these proceedings saying that she is entitled to have the right of way claimed.  In my view, there is no chance that Madam Ko would succeed at the trial.

Lost modern grant

27.  In China Field Ltd v Appeal Tribunal (Buildings) (No 2)[9], the Court of Final Appeal has made it clear that the only kind of prescription in Hong Kong is the prescription based upon the doctrine of lost modern grant.

28.  Madam Ko’s case is that she is not the owner of House 43C.  The owner of the same is the elder son.  According to Madam Ko, she is a licensee exercising exclusive possession and effective control of House 43C since about 2006, and treating the same as her own house.

29.  In my view, since Madam Ko is not the owner of House 43C but is merely a licensee occupying the same, Madam Ko does not have the locus to claim a right of way serving House 43C by relying upon the doctrine of lost modern grant. The authority on the point is the Court of Appeal’s decision in Hollywood Shopping Centre Owners Committee Ltd v Wing Wah Building[10].

30.  In Hollywood Shopping Centre, the plaintiff sought to raise a new point on appeal, ie, it had acquired an easement or quasi-easement by the doctrine of lost modern grant by its uninterrupted use of a canopy of the building for more than 20 years.  The Court of Appeal did not allow the plaintiff to raise this new point in the appeal.  The Court of Appeal also said that the point would fail in any event.  Kwan JA in her judgment said (other members of the court concurring):-

“56. In any event, the plaintiff’s arguments on the easement point are unsustainable in law. As we had permitted the parties to address us on this matter de bene esse, I would just dispose of the arguments succinctly for the sake of completeness.

57. The plaintiff does not have locus standi to claim any easement or quasi-easement. It has never been a co-owner. ……” (Emphasis added)

31.  Mr Yim submits that what has been said by Kwan JA in Hollywood Shopping Centre [57] is merely obiter.  Mr Yim refers me to another decision by the Court of Appeal, Chan Tin Yau & Ors v Tsang Kwok Kay[11]. In that case, the plaintiffs claimed a right of way over the defendant’s land. The plaintiffs were villagers who lived in the southern part of Shui Tsan Tin Tsuen.  The Court of Appeal overturned the Court of First Instance’s decision that a public right of way was granted by written dedication[12], but found that a legal basis existed for the villagers to acquire a right of way by lost modern grant[13]. Mr Yim submits that in Chan Tin Yau, in both the Court of Appeal’s decision and the Court of First Instance’s decision[14], there was no suggestion that the plaintiff villagers owned any land in the village.  Mr Yim therefore submits that a claimant may succeed in claiming an easement by the doctrine of lost modern grant even that he may not be the owner of the dominant tenement.  With respect, I am unable to accept these submissions.

32.  If a court has given more than one reasons for its decision, there is no justification to treat one reason as obiter, simply because the court has given another reason.  All the reasons given are the ratio of that decision[15]. In Hollywood Shopping Centre, the Court of Appeal has given more than one reason explaining why the plaintiff could not succeed by relying upon the point on lost modern grant.  In my view, what has been said by Kwan JA in [57] of the judgment is a ratio of the decision of rejecting the plaintiff’s point. The ruling in [57] of the judgment is binding upon me.

33.  It is correct that by reading the judgments given by the Court of First Instance and by the Court of Appeal in Chan Tin Yau, we do not know whether the plaintiff villagers owned any land in the village.  However, that cannot be treated as a ruling made by the Court of Appeal that a claimant who is not the owner of the dominant tenement may still claim an easement serving the dominant tenement by the doctrine of lost modern grant.   At most it can only be said that this point is not clear in Chan Tin Yau.  However, subsequently, the Court of Appeal has spoken in Hollywood Shopping Centre, and the point has been made clear in [57] of the judgment in that case.

34.  In any event, I agree with the ruling in [57] of Hollywood Shopping Centre.  It has to be borne in mind that under the doctrine of lost modern grant, the easement granted is a proprietary interest granted to the dominant tenement, not a personal interest granted to any person.  That being the case, naturally the person claiming an easement by the doctrine of lost modern grant would have to be the owner of the dominant tenement, for he or she is claiming a proprietary interest serving and being enjoyed by the dominant tenement.

Public nuisance

35.  In order to succeed on a claim based upon public nuisance, a private individual must show that he or she has suffered a “particular, direct and substantial” injury above and beyond what is suffered by the rest of the public at large[16].

36.  In relation to the claim of public nuisance, Mr Yim refers me to the following parts of the statement of claim:-

“32. On or about 5 March 2017, the Plaintiff suffered from a minor stroke. However, as a result of the Defendants’ wrongful acts, ambulance vehicles could not gain access to the Northern Part of the Village through the Subject Way. The ambulancemen had to use a stretcher to carry the Plaintiff from House 43C to Wang Ping Shan East Road through the Subject Way.

…………

39. By reason of the matters pleaded in paragraphs ‎29 to ‎37 above, the Plaintiff has suffered distress, inconvenience, loss and damage.

PARTICULARS

(1) The Plaintiff is now 87 years old and unable to walk by herself without the assistance of her family members. She relies heavily on vehicular transport if and when she gets about.

(2) The blocking of vehicular traffic pleaded in paragraphs ‎29 to ‎37 above will, if unrestrained:

(a) greatly and adversely affect the daily life of the Plaintiff,

(b) prevent vehicles of Government emergency services like ambulances from having access to House 43C and the lots in their vicinity, hence posing potentially serious threats to the safety and well-being of the inhabitants and occupants of House 43C and of the lots in their vicinity.”

37.  With respect, in my view, a cause of action based upon public nuisance has not been pleaded in the statement of claim.  There is no plea at anywhere of the statement of claim asserting that by reason of the wrongful acts done by the mortgagee and Mr Yeung, Madam Ko has suffered an injury above and beyond the rest of the public at large.  As the issues in the trial are defined by pleadings not by evidence[17], in the absence of this plea, Madam Ko would not be able to succeed on public nuisance at the trial.  There is no serious question to be tried on public nuisance.

38.  Further, Madam Ko has not produced any evidence showing whether there is any other elderly person living in the vicinity.  If yes, the difficulties encountered by Madam Ko as pleaded in paragraphs 32 and 39 of the statement of claim may also be the difficulties encountered by the other elderly persons living in the vicinity as a result of the blockage of the Subject Way.  There is simply no evidence showing that the injury suffered by Madam Ko is over and above the rest of the public at large.

Private nuisance

39.  Private nuisance is unlawful interference with a person’s use or enjoyment of land.  In order to found a claim on private nuisance, the claimant must have an interest in the land.  He or she must have a right to the land either as owner, tenant, reversioner or a licensee having excusive possession or occupation of the land under the licence[18].

40.  Mr Yim emphasizes that Madam Ko is not a mere licensee, and is having exclusive possession and effective control of House 43C, and hence has the locus to make a claim based upon private nuisance.  However, as to the exact nature of the “exclusive possession” and “effective control” claimed by Madam Ko, there is no elaboration in the statement of claim, and there is no explanation in the evidence.  One does not know under the licence, whether Madam Ko may exclude the owner of House 43C and the grantor of the licence (ie the elder son) from the land.  One also does not know whether the licence may be terminated by the elder son at any time at will.

41.  In my view, Madam Ko has failed to adduce evidence to explain the nature of “exclusive possession” and “effective control” of House 43C claimed by her. In these circumstances, although showing a serious question to be tried is not a very steep hurdle, I am of the view that Madam Ko has not overcome this hurdle in showing a serious question to be tried on private nuisance.

ANY HIGH DEGREE OF ASSURANCE

42.  Even if I were wrong on the above and there is a serious question to be tried, in my view, Madam Ko has failed to show a high degree of assurance that she will succeed at the trial.

43.  Madam Ko has filed 2 affirmations made by her and 1 affirmation made by the younger son in support of the summons.  Whether her evidence and the younger son’s evidence are the truth is a matter to be tested by cross-examination at the trial.  Having read those affirmations, the affirmations filed by the mortgagee and Mr Yeung, and the documents produced by the parties in this application, I am of the view that Madam Ko’s case may or may not be believed by the court at the trial.  There is no high degree of assurance that Madam Ko will succeed at the end of the day.

44.  On the question of acquiring the right of way as a public way by dedication[19], even assuming that Madam Ko has shown a serious question to be tried, I do not regard Madam Ko has shown that she has a high degree of assurance that she will eventually succeed on this issue.

45.  Mr Jonathan Tai, counsel for Mr Yeung, has helpfully referred me to the Canadian Court of Appeal’s decision  in Cook’s Road Maintenance Association v Crowhill Estates[20].

(1)   In [28], the Canadian Court of Appeal approved another Canadian case of Reed v Town of Lincoln[21], which stated:-

“The defendant was required to prove an actual intention on the part of a predecessor in title of the plaintiff to dedicate the road as a public highway … Such an intention ought not to be too readily inferred from the use by members of the public of a road traversing private property in a rural community, especially in a locality where the normal system of roads did not develop. In these circumstances the owner of the property may well, in a neighbourly spirit, permit local residents to use a way across it for their convenience without having any intention of dedicating the road as a public highway …” (Emphasis added)

(2)   In [45], the Canadian Court of Appeal said:-

“… it is necessary to be mindful of the fact that Cook’s Road is situated on private land. It is privately owned by the appellant. To declare a private road to be a public road will extinguish the property rights of its owner. It is a very serious step, therefore, for a court to declare an individual’s private property to be public property. Property rights are to be respected. No doubt this underlies the admonition of Martin J.A. in Reed, supra, at p. 402, that before the court can find that private property rights have been extinguished by dedication cogent or substantial evidence is required…” (Emphasis added)

46.  Madam Ko is asking this court to draw an inference of dedication to the public from the long user of the Subject Way.  There is no direct evidence that the owners of Lot 2121 RP and Lot 2122 had so dedicated.  Bearing in mind that the Subject Way is situated in a rural area where no systematic network of roads has been planned and developed, a long user of the Subject Way by the villagers (assuming that there is such a long user) may well be due to the permission of the owners of the 2 lots given to the villagers in a neighbourly spirit without any intention of dedicating the Subject Way to the public.  In these circumstances, I do not think that Madam Ko has demonstrated a high degree of assurance that she will succeed on the claim of a public right of way by dedication.

BALANCE OF CONVENIENCE

47.  For the sake of completeness, I would also set out my view on the balance of convenience.  In my view, the balance of convenience lies in favour of refusing to grant the injunction sought by Madam Ko.

48.  Madam Ko claims that in the absence of an injunction, she has suffered and would continue to suffer the distress, inconvenience, loss and damage as set out in paragraphs 32 and 39 of the statement of claim.  However, there is a serious delay in commencing these proceedings and making this application for an interlocutory injunction.  With respect, none of the explanations offered by Madam Ko is a satisfactory explanation of the delay.

(1)   The obstruction occurred in January 2017.  Madam Ko did not state when she started to make an application for legal aid.

(2)   After obtaining the legal aid certificate on 20 December 2017, Madam Ko has not offered any explanation as to why she did not try to engage another counsel to handle her case, knowing that Mr Yim would need to be on leave for a period of time.

(3)   It seems that no action has been taken by Madam Ko and her legal representatives from mid-March 2018 to mid-June 2018.  There is no explanation as to why there was no action during this period.

(4)   From mid-June 2018 to mid-November 2018, there was just a few letters concerning the matters in this case being written or received by Madam Ko’s solicitors.  Madam Ko’s solicitors have not tried to bring the matters to the court as soon as possible.

49.  A plaintiff should apply for an interlocutory injunction promptly after becoming aware of the facts in relation to which he or she seeks protection. Failure to make a timely application for an interlocutory injunction may well show that there is no irreparable damage in the absence of an interlocutory injunction. In King Fung Vacuum Ltd v Toto Toys Ltd[22], Rogers VP said:-

“20. There has traditionally been a strong requirement when interlocutory injunctions have been sought, that the plaintiff must show that it has acted promptly and without delay. Promptly in the circumstances of interlocutory injunctions has been commonly understood to be a period of six weeks or so of unexplained delay and three months with an explanation given for the delay in making application for an injunction. Since the American Cyanamid decision the importance of irreparable damage in an application for an interlocutory injunction is paramount. If there is no irreparable damage demonstrated then the need for an interlocutory injunction has not been shown. This is important because of the approach that the courts take to interlocutory injunctions. They are not the trial of the action and the court is concerned with whether irreparable damage will occur before a trial can take place. It stands to reason that if a party is prepared to allow matters to proceed and takes no action with respect to matters which have been extant for lengthy periods, it lies ill in their mouth to say that there is likely to be irreparable damage and that is the case here.

21. The defendants have come along a year or so after they had become aware of the facts of which they now complain, and say, 'Oh, well, there is likely to be irreparable damage'. But that is not established simply by so saying. …”

50.  Given the substantial delay in commencing these proceedings and in taking out this application for an interlocutory injunction, I doubt whether there is any irreparable damage to Madam Ko if the injunction sought is not granted.

51.  Further, Mr Yeung has produced evidence showing that the operator of the Parking Lot is prepared to allow Madam Ko or the younger son’s vehicles to pass through the Parking Lot and the Gate on the condition that there would be a payment of HK$700.00 per month to the operator.  By being able to pass through the Parking Lot and the Gate, vehicles can travel to and from House 43C.  Madam Ko has not said that she is unable to pay the HK$700.00.  By adopting this as an interim measure, Madam Ko would be able to have vehicular access to and from House 43C pending the outcome of the trial in these proceedings.  If Madam Ko succeeds at the trial, she can recoup the fees paid from the mortgagee and from Mr Yeung.

52.  On the other hand, if the injunction sought is granted and Madam Ko fails at the trial, Madam Ko may not be able to compensate the losses suffered by the mortgagee as a result of the injunction.

53.  If the injunction sought is granted, that would be equivalent to making a provisional order declaring that Lot 2121 RP and Lot 2122 are subject to the right of way claimed by Madam Ko, and that would adversely affect the mortgagee’s interest.  The market would treat the right of way as an encumbrance on these 2 lots.  The mortgagee would have more difficulties in getting these 2 lots being sold.  Further, the selling price would be discounted to reflect the encumbrance.  Bearing in mind that Madam Ko is unable to offer any undertaking as to damages, if the injunction sought is granted but Madam Ko fails at the trial, the mortgagee may not be able to get any compensation from Madam Ko[23].

54.  Mr Yim tells the court that the younger son now offers an undertaking that he would pay HK$20,000.00[24] and the fees requested by the operator of the Parking Lot (ie HK$700.00 per month) to the mortgagee and Mr Yeung if the injunction sought is granted but Madam Ko fails at the trial.  In my view, the undertaking offered is not an adequate protection to the mortgagee.  The undertaking offered cannot address the loss and damage which may be suffered by the mortgagee as set out in paragraph 53 above.

DISPOSITION

55.  For the reasons above, I am of the view that Madam Ko has not shown a serious question to be tried.  Further, there is no high degree of assurance that Madam Ko will succeed at the trial.  The balance of convenience is also not in favour of granting the injunction.  In these circumstances, Madam Ko’s application must fail and the summons must be dismissed.

56.  I dismiss the summons.

57.  Costs should follow the event.  I order that costs of the summons be to the mortgagee and Mr Yeung forthwith, with a certificate for counsel, to be taxed if not agreed.  Madam Ko’s own costs are to be taxed in accordance with the Legal Aid Regulations.

58.  I thank counsel for the assistance rendered to the court.